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Spotted Elk v. Yost

United States District Court, D. South Dakota, Southern Division

August 30, 2017

ANDREW GREGORY SPOTTED ELK, Plaintiff,
v.
TAYLOR YOST, Defendant.

          ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS, DISMISSING COMPLAINT IN PART AND DIRECTING SERVICE

          LAWRENCE L. PIERSOL UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         Plaintiff, Andrew Spotted Elk is an inmate at the South Dakota State Penitentiary in Sioux Falls, South Dakota. He filed this lawsuit pursuant to 42 U.S.C. § 1983 and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Docket 1; Docket 2. This Court screened Spotted Elk's complaint pursuant to 28 U.S.C. § 1915A. For the reasons below, his motion to proceed in forma pauperis is granted and his complaint is dismissed in part and survives screening in part.

         FACTUAL BACKGROUND

         On August 6, 2016, Spotted Elk alleges Taylor Yost "kneed" him in the face while he was cuffed and chained down "while being held down by two other correctional officers." Docket 1 at 4. Spotted Elk further alleges that Taylor Yost called him "a sex offender and a rapist" after Taylor Yost "kneed" him. Id. at 4-5.

         Spotted Elk submitted a request for administrative relief and appealed his request for relief. Id. Spotted Elk filed this complaint and motion for leave to proceed in forma pauperis on July 26, 2017. Id. at 1. He raises claims of excessive force by an officer and hate crime. Id. at 4-5. He claims injuries of swelling, redness, and bruising to the face and emotional and psychological trauma. Id. In relief, Spotted Elk requests compensation for physical, mental, emotional, and psychological damages. Spotted Elk further requests legal fees, "future psychological treatment, " "consent decrees for immediate administrative action against those in question, " "training for officers on proper handling of situations regarding inmates in similar situations." Id. at 7.

         DISCUSSION

         I. Motion to Proceed In Forma Pauperis

         Under the Prison Litigation Reform Act (PLRA), a prisoner who "brings a civil action or files an appeal in forma pauperis . . . shall be required to pay the full amount of a filing fee." 28 U.S.C. § 1915(b)(1). The court may, however, accept partial payment of the initial filing fee where appropriate. Therefore, " '[w]hen an inmate seeks pauper status, the only issue is whether the inmate pays the entire fee at the initiation of the proceedings or over a period of time under an installment plan.' " Henderson v. Norris, 129 F.3d 481, 483 (8th Cir. 1997) (quoting McGore v. Wriggksworth, 114 F.3d 601, 604 (6th Cir. 1997)).

         The initial partial filing fee that accompanies an installment plan is calculated according to 28 U.S.C. § 1915(b)(1), which requires a payment of 20 percent of the greater of:

(A) the average monthly deposits to the prisoner's account; or
(B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint or notice of appeal.

         Plaintiff has reported average monthly deposits to his prisoner trust account of $0 and an average monthly balance of negative $709.58. Docket 3. Based on this information, the Court grants Plaintiff leave to proceed in forma pauperis and waives his initial partial filing fee. In order to pay his filing fee, Plaintiff must "make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account." 28 U.S.C. § 1915(b)(2). The statute places the burden on the prisoner's institution to collect the additional monthly payments and forward them to the Court as follows:

After payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. The agency having custody of the prisoner shall forward payments from the prisoner's account to the clerk of the court ...

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